JUROR MISCONDUCT: RECOGNIZING IT AND RAISING IT …

1 1 JUROR misconduct : RECOGNIZING IT AND RAISING IT ON APPEALBy: Lori QuickJurors are human beings, with biases, prejudices, and preconceived , those biases, prejudices and preconceived notions are typically not favorableto our clients. Knowing this, defense counsel must always be vigilant in detecting andbringing them to light. This article discusses some common manifestations of jurormisconduct and how appellate counsel can recognize the issue and raise it in the Court The federal and state constitutions guarantee to a defendant accused of a crime theright to a trial by unbiased, impartial jurors . ( Const., 6th and 14th Amends.; , art. I, section 16; Irvin v. Dowd (1961) 366 717, 722; In re Hitchings (1993) 97, 110.) An impartial JUROR is someone capable and willing to decide the case solelyon the evidence presented at trial. (Smith v. Phillips (1982) 455 209, 217.) A sittingjuror's actual bias, which would have supported a challenge for cause, renders him unableto perform his duty and thus subject to discharge and substitution.

2 (People v. Keenan (1988)46 478, 532; People v. Lomax (2010) 49 530, 589.) "Because a defendantcharged with a crime has a right to the unanimous verdict of 12 impartial jurors [citation],it is settled that a conviction cannot stand if even a single JUROR has been improperlyinfluenced. [Citations.]" (People v. Holloway (1990) 50 1098, 1112, disapprovedon other grounds in People v. Stansbury (1995) 9 824, 830, fn. 1.) is Bias in the Context of JUROR misconduct ? When we talk about JUROR misconduct , it really comes down to one question: was thejuror for some reason unable to impartially consider the facts? Was he or she able to setaside his preconceived notions about criminal defendants, crime, police, and the criminaljustice system, and truly be an objective JUROR ? In the context of JUROR misconduct , courtshave defined two distinct types of bias: actual bias and implied is Actual Bias? Actual bias is defined as the existence of a state of mind on the part of the JUROR inreference to the case, or to any of the parties, which will prevent the JUROR from acting withentire impartiality, and without prejudice to the substantial rights of any party.

3 (Civ. , sec. 225, subd. (b)(1)(C); see People v. Hillhouse (2002) 27 469, 488; Peoplev. Foster (2010) 50 1301, 1325; People v. Nesler (1997) 16 561, 581.) Some examples of actual bias are when a JUROR states that he or she would find it hardto keep an open mind because of the nature of the charges against the defendant (People (1971) 6 55, 59 [Pen. Code, sec. 288 case]; People v. Van Houten (1980)113 280 [ JUROR made physically and emotionally ill by graphic testimonyregarding multiple murders]); when a JUROR feels he or she cannot believe the testimony ofa particular kind of witness (People v. Barnwell (2007) 41 1038 [ JUROR refused tobelieve testimony of any police officer]; when a prospective JUROR states a belief in jurynullification and states that if selected he or she would not follow the law (People v. Merced(2001) 94 1024 [prospective JUROR told court it was reasonable to assume hewould not follow the law]; where a JUROR has a view on capital punishment that wouldprevent or impair his or her ability to return a verdict of death in the case before the JUROR (People v.)))

4 Cash (2002) 28 703, 719-720; People v. Hamilton (2009) 45 863,885); or where a JUROR would automatically vote for death in any murder case, or is biasedin favor of the death penalty (see Ross v. Oklahoma (1988) 487 81, 85 [101 80,87-88, 108 2273]; People v. Coleman (1988) 46 749, 763-765.) If the deathpenalty is imposed by a jury containing even one JUROR who would vote automatically for thedeath penalty without considering the mitigating evidence, the State is disentitled to executethe sentence. (Morgan v. Illinois (1992) 504 719, 729 [112 2222, 2230, 492].) is Implied Bias? Implied bias exists on facts as ascertained, and in judgment of law disqualifies thejuror. (Civ. Proc. Code, sec. 225, subd. (b)(1)(B).) Civil Procedure Code section 229 setsforth eight exclusive grounds on which a challenge for implied bias may be taken. They are:(a) Consanguinity or affinity within the fourth degree to any party, to anofficer of a corporation which is a party, or to any alleged witness or victimin the case at bar.

5 (b) Standing in the relation of, or being the parent, spouse, or child of onewho stands in the relation of, guardian and ward, conservator and conservatee,master and servant, employer and clerk, landlord and tenant, principal andagent, or debtor and creditor, to either party or to an officer of a corporationwhich is a party, or being a member of the family of either party; or a partnerin business with either party; or surety on any bond or obligation for eitherparty, or being the holder of bonds or shares of capital stock of a corporation3which is a party; or having stood within one year previous to the filing of thecomplaint in the action in the relation of attorney and client with either partyor with the attorney for either party. A depositor of a bank or a holder of asavings account in a savings and loan association shall not be deemed acreditor of that bank or savings and loan association for the purpose of thisparagraph solely by reason of his or her being a depositor or account holder.

6 (c) Having served as a trial or grand JUROR or on a jury of inquest in a civil orcriminal action or been a witness on a previous or pending trial between thesame parties, or involving the same specific offense or cause of action; orhaving served as a trial or grand JUROR or on a jury within one year previouslyin any criminal or civil action or proceeding in which either party was theplaintiff or defendant or in a criminal action where either party was thedefendant.(d) Interest on the part of the JUROR in the event of the action, or in the mainquestion involved in the action, except his or her interest as a member orcitizen or taxpayer of a county, city and county, incorporated city or town, orother political subdivision of a county, or municipal water district.(e) Having an unqualified opinion or belief as to the merits of the actionfounded on knowledge of its material facts or of some of them.(f) The existence of a state of mind in the JUROR evincing enmity against, orbias towards, either party.

7 (g) That the JUROR is party to an action pending in the court for which he or sheis drawn and which action is set for trial before the panel of which the JUROR isa member.(h) If the offense charged is punishable with death, the entertaining of suchconscientious opinions as would preclude the JUROR finding the defendantguilty; in which case the JUROR may neither be permitted nor compelled the statute expressly states, a JUROR may be excused for implied bias only for oneof the reasons listed in the statute, and no other. (People v. Ledesma (2006) 39 641,670.) However, federal courts have held that bias can be implied or presumed from the potential for substantial emotional involvement, adversely affecting impartiality inherentin certain relationships. (United States v. Allsup (9th Cir. 1977) 566 68, 71; Tinsleyv. Borg (9th Cir. 1990) 895 520, 527.) California courts also appear to be willing to4expand the kinds of situations that can be classified as implied bias under Civil ProcedureCode section 229.

8 For example, in People v. Terry (1994) 30 97, the FourthDistrict ruled that a deputy district attorney called as a prospective JUROR in a case beingprosecuted by his office could be challenged for implied bias, concluding .. the thrust andpurpose of section 229, if not perhaps its specific wording, requires that an attorney who isa member of the firm of counsel trying a case should not be permitted, over objection, toserve on the jury. (Terry, supra, 30 at p. 103.) A broad range of emotions canbe characterized as implied bias under subdivision (f) which states that a prospective jurormay be excused for implied bias if he or she has a state of mind evincing enmity against,or bias towards, either party. Common Forms of JUROR MisconductJurors commit misconduct in a variety of ways. Virtually all of them indicate that thejuror was biased, has become biased, or was instrumental in creating bias among otherjurors. Some of the more commonly seen types of JUROR misconduct are presented below.

9 Of Material Information During Voir Dire Voir dire examination is designed to protect a criminal defendant's right to a fairtrial by exposing possible biases, both known and unknown, on the part of potential bias in the responses to questions on voir dire may result in a JUROR 's beingexcused for cause; hints of bias not sufficient to warrant challenge for cause may assistparties in exercising their peremptory challenges. The necessity of truthful answers byprospective jurors if this process is to serve its purpose is obvious. [Citation.] A JUROR whoconceals relevant facts or gives false answers during the voir dire examination thusundermines the jury selection process and commits misconduct . (Hitchings, supra, at pp. 110 111, fn. omitted.) A prospective JUROR s false answers on voir dire canprevent the parties from intelligently exercising their statutory right to challenge aprospective JUROR peremptorily or for cause and is.

10 Not a mere matter of procedure, butthe deprivation of an absolute and substantial right historically designed as one of the chiefsafeguards of a defendant against an unlawful conviction. (People v. Diaz (1984) 926, 933.)Probably one of the most famous JUROR misconduct cases in California involving theconcealment of information during voir dire is People v. Nesler, supra, 16 561,which was handled by SDAP staff attorney Paul Couenhoven. There, the defendant wasconvicted of voluntary manslaughter with the use of a firearm after she fatally shot thedefendant who was being prosecuted for sexually assaulting Nesler s seven-year-old deliberations, one of the seated jurors told the rest of the jury that Nesler was not agood mother. The JUROR claimed to know this because she knew Nesler s babysitter whogave her unflattering information about Nesler s parenting skills, specifically that she wouldleave her children for days at a time.